Filed: Sep. 16, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D Revised September 16, 2003 August 26, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _ No. 02-31188 _ RALPH MORRIS, et al., Plaintiffs, RALPH MORRIS, Plaintiff-Appellant, versus T E MARINE CORPORATION, et al., Defendants, SUBSEA INTERNATIONAL INC, incorrectly sued as Sub Sea International, Inc.; GLOBAL INDUSTRIES LTD, incorrectly sued as Global Industries, Defendants-Appellees. _ Appeal from th
Summary: United States Court of Appeals Fifth Circuit F I L E D Revised September 16, 2003 August 26, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk _ No. 02-31188 _ RALPH MORRIS, et al., Plaintiffs, RALPH MORRIS, Plaintiff-Appellant, versus T E MARINE CORPORATION, et al., Defendants, SUBSEA INTERNATIONAL INC, incorrectly sued as Sub Sea International, Inc.; GLOBAL INDUSTRIES LTD, incorrectly sued as Global Industries, Defendants-Appellees. _ Appeal from the..
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United States Court of Appeals
Fifth Circuit
F I L E D
Revised September 16, 2003
August 26, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
__________________________
No. 02-31188
__________________________
RALPH MORRIS, et al.,
Plaintiffs,
RALPH MORRIS,
Plaintiff-Appellant,
versus
T E MARINE CORPORATION, et al.,
Defendants,
SUBSEA INTERNATIONAL INC, incorrectly sued as Sub Sea International, Inc.; GLOBAL
INDUSTRIES LTD, incorrectly sued as Global Industries,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Louisiana
___________________________________________________
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
After a tortured procedural history, this case purports to present issues of tort and admiralty
law. However, given the untimeliness of this appeal, we do not reach those issues. We hold that the
district court’s remand order of June 8, 2001, following its May 21, 2001, order granting summary
judgment to SubSea International (“SubSea”) was a final appealable order. The failure of Plaintiff-
Appellant Ralph Morris (“Morris”) to appeal that order to this Court within the prescribed time
period constitutes a waiver by Morris of his right to appeal, hence we AFFIRM .
I. FACTS AND PROCEEDINGS
A. Procedural History
The procedural history of this case reads like a nightmarish civil procedure exam. In July
1994, Morris filed suit (“Original Petition”) in the Civil District Court for the Pari sh of Orleans
against T E Marine Corp. (“TE Marine”), alleging that TE Marine’s negligence as the owner and/or
operator of a ship contributed to an injury he sustained on a fixed platform located in the Gulf of
Mexico. Morris did not plead any basis for the court’s jurisdiction and did no assert that any
t
particular law applied to his claims.
In early 1995, Morris supplemented his petition twice, first to add his then-employer, Murphy
Exploration and Production Company (“Murphy”), as a defendant (“First Amendment”) and second,
to add a company that had participated in repairing hurricane damage to a fixed platform’s boat
landing deck and stairwell, Gulf Inland Contractors (“Gulf”), as a defendant (“Second Amendment”).
Morris subsequently settled the claims against TE Marine and Murphy, leaving Gulf as the sole
defendant.
In April 1998, four and o ne-half years after his alleged injury, Morris filed a Third
Supplemental and Amending Petition (“Third Amendment”) to add SubSea International, Inc.
(“SubSea”), which had installed bumper tires to the platform’s boat dock, as a defendant.1 Morris
alleged the improper installation of the bumper system allowed the bumper to be propelled
1
Morris also added SubSea’s successor, Global Industries Ltd, as a defendant.
2
dangerously upwards into the handrail when struck by the boat. The Third Amendment also alleged
a claim under the Jones Act, 46 U.S.C. app. § 688 (2003), against Murphy, but asserted that the case
was properly in state court (and not removable to federal court) under the “savings to suitors” clause,
28 U.S.C. § 1333 (2003).2 The Third Amendment otherwise did not specify the laws under which
the case was brought.
On June 18, 1999, SubSea filed a Peremptory Exception of Prescription in state court, seeking
dismissal of Morris’s claim. SubSea argued that general maritime law applied to Morris’s suit against
it, given the situs and the maritime nexus of Morris’s alleged accident. Specifically, SubSea urged
the court to apply the three-year statute of limitations under the Uniform Statute of Limitations for
Maritime Torts (“USLMT”), 46 U.S.C. app. § 763a (2003), because Morris filed suit against SubSea
more than four years after the accident.
Morris then filed an Opposition to Peremptory Exception of Prescription, asserting specifically
(and for the first time) that his tort occurred on the outer continental shelf and that, as a result of the
Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §§ 1331-56 (2003), the law of the
adjacent state (Louisiana) applies. Morris argued t hat his suit against SubSea was not prescribed
because, under Louisiana law, a suit against any party solidarily liable for injury interrupts prescription
with respect to any other solidary obligor.
2
“The district courts shall have original jurisdiction, exclusive of the courts of the States,
of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are otherwise entitled.”
28 U.S.C. § 1333.
3
On May 22, 2000, the state court, apparently accepting Morris’s arguments and without
explanation, denied SubSea’s Peremptory Exception of Prescription. Within two days, Morris filed
a Fourth Supplemental and Amending Petition (“Fourth Amendment”) assert ing jurisdiction and
claims under OCSLA, deleting all claims of seaman status, and attempting to withdraw his claim
under the Jones Act (which presumably had precipitated the 1995 settlement with his then-employer).
Based on this Fourth Amendment, which specifically alleged OCSLA situs and applicability,
and based on the state court’s implicit finding that Morris’s claims were founded on OCSLA, SubSea
removed the action on June 9, 2000, pursuant to 28 U.S.C. § 1441 (2003). Morris moved to remand,
alleging removal was untimely.
The district court denied remand, finding that the case became removable, at the earliest, on
May 22, 2000—the date of the state court’s denial of SubSea’s prescription exception which
implicitly accepted Morris’s argument that his claim was governed by OCSLA. The court concluded
that SubSea’s removal on June 9, 2000, came before the expiration of the 30-day time limit for
removal. See 28 U.S.C. § 1446(b) (2003) (“If the case stated by the initial pleading is not removable,
a notice of removal may be filed within thirty days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first
be ascertained that the case is one which is or has become removable . . . .”).
SubSea subsequently filed a motion for summary judgment, contending that because admiralty
jurisdiction applied, Morris’s claims against SubSea were barred by the three-year statute of
limitations for maritime torts. The district court agreed and dismissed Morris’s complaint against
SubSea as time-barred. The court specifically rejected Morris’s contention that the law of the case
4
doctrine precluded the court’s revisiting the statute of limitations issue previously decided by the state
court.
After SubSea was dismissed from the case, Morris filed a motion to remand without providing
notice to SubSea. The sole remaining defendant, Gulf, did not oppose remand, which was ordered
on June 8, 2001. After remand, Morris ultimately settled with Gulf, and the state court entered a
corresponding order of dismissal.
To summarize: Morris settled claims against TE Marine, Murphy, and Gulf. Morris’s claim
against SubSea was the only claim to have been adjudicated—the federal district court granted
summary judgment in favor of SubSea because the claims were time-barred.
Without giving notice to SubSea, Morris appealed the adverse federal court summary
judgment—to a state appellate court (the Louisiana Fourth Circuit Court of Appeal). SubSea learned
of the case when someone in the clerk’s office of the appellate court made a status inquiry over the
telephone. SubSea immediately removed the case, for a second time (“Second Removal”), based on
OCSLA and the All Writs Act, 28 U.S.C. § 1651(a) (2003). Morris moved for remand; a different
district judge denied the remand and ultimately entered judgment in favor of SubSea, dismissing
Morris’s claims as time-barred. Morris appeals.
While this appeal has been pending, the state appellate court has in turn stayed the appeal,
demanded updates from the parties on the proceedings in federal court, threatened to hold the
attorneys in contempt for failing to provide updates, and lifted the stay.
II. STANDARD OF REVIEW
This Court reviews decisions not to remand de novo. Miller v. Diamond Shamrock Co., 275 F.3d
414, 417 (5th Cir. 2002). We may address our jurisdiction to hear appeals sua sponte. Steel Co. v.
5
Citizens for a Better Env’t, 523 U.S. 83 (1998); Crone v. Cockrell,
324 F.3d 833, 836 (5th. Cir
2003).
III. DISCUSSION
A. The denial of Morris’s motion to remand the Second Removal
Morris challenges SubSea’s Second Removal of the state court action to federal district
court. When it learned—from the state appellate court itself—that Morris had appealed to the
state appellate court, SubSea took the unusual step of removing to the federal district court.3
SubSea asserts the Second Removal was proper under two separate statutes, the All Writs Act,
28 U.S.C. § 1651, and OCSLA, 43 U.S.C. § 1349.
(1) Removability under the All Writs Act, 28 U.S.C. § 1651
The Supreme Court’s Syngenta case, decided last term, forecloses the argument that the
All Writs Act provides original jurisdiction, and hence a basis for removal. Syngenta Crop
Protection, Inc. v. Henson, 537 U.S. 28, __,
123 S. Ct. 366, 369-70 (2002) (holding that the All
Writs Act does not provide an independent jurisdictional basis for removal). Hence, removal
under the All Writs Act is not available.
(2) Removability based on OCSLA, 43 U.S.C. § 1349
The general removal statute, 28 U.S.C. § 1441, has two relevant requirements for
removal. First, only civil actions “of which the district courts . . . have original jurisdiction, may
3
It is not clear why SubSea removed this case instead of simply seeking an injunction in
district court in order to “protect and effectuate” the district court’s earlier judgment. See Anti-
Injunction Act, 28 U.S.C. § 2283 (2003) (“A court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”(emphasis
added)); see also 17 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
FEDERAL PRACTICE & PROCEDURE § 4226 (2d ed. 1988).
6
be removed.” 28 U.S.C. § 1441(a). Second, civil actions founded on a claim or right “arising
under the Constitution, treaties or laws of the United States” are removable without regard to
citizenship. 28 U.S.C. § 1441(b). The removal of all other actions turns on the citizenship of
defendants. Id.
a. Removal requirement of § 1441(a)
OCSLA provides:
[T]he district courts of the United States shall have jurisdiction of cases and
controversies arising out of, or in connection with . . . any operation conducted on
the outer Continental Shelf which involves exploration, development, or
production of the minerals, of the subsoil and seabed of the outer Continental Shelf
....
43 U.S.C. § 1349(b)(1).
In light of Morris’s claims under OCSLA, SubSea argues OCSLA’s grant of jurisdiction
satisfies the first requirement of the removal statute—“Except as otherwise expressly provided by
Act of Congress, any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed . . . .” 28 U.S.C. § 1441(a).
Morris contends that an Act of Congress has “otherwise expressly provided” that his case is
not removable. The statute granting district courts original jurisdiction over admiralty and
maritime cases provides:
The district courts shall have original jurisdiction, exclusive of the courts of the
States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are otherwise entitled.
7
28 U.S.C. § 1333. Morris asserts that the “savings to suitors” clause of the statute prohibits
removal of all cases brought in state court that contain claims under general maritime law. This is
not entirely correct.
General maritime claims saved to suitors are, of themselves, not removable. See, e.g.,
Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 377-79 (1959) (discussing non-
removability of “savings to suitors” claims on the grounds that, because maritime claims do not
arise under the laws or Constitution of the United States, they do not present federal questions).
Nevertheless, the “savings to suitors” clause “does not guarantee [plaintiffs] a nonfederal forum,
or limit the right of defendants to remove such actions to federal court where there exists some
basis for federal jurisdiction other than admiralty.” Tenn. Gas Pipeline v. Houston Cas. Ins.,
87
F.3d 152, 153 (5th Cir. 1996) (internal citations omitted, emphasis in original). As a result,
removal is appropriate if federal jurisdiction exists under a separate statute.
Id. OCSLA
provides just such a “basis for federal jurisdiction other than admiralty.” See, e.g., Dahlen v. Gulf
Crews, Inc.,
281 F.3d 487, 492 (5th Cir. 2002) (concluding § 1349(b) of OCSLA grants
jurisdiction).
b. Removal requirements of § 1441(b)
The removal statute places an additional requirement for removal in § 1441(b). Paragraph
(b) provides:
Any civil action of which the district courts have original jurisdiction founded on a
claim or right arising under the Constitution, treaties or laws of the United States
shall be removable without regard to the citizenship or residence of the parties.
Any other such action shall be removable only if none of the parties in interest
properly joined and served as defendants is a citizen of the State in which such
action is brought.
8
28 U.S.C. § 1441(b) (emphasis added). SubSea is a foreign (i.e. non-Louisiana) corporation.
Thus, the requirement in the second sentence of § 1441(b) is satisfied, and removal was proper
under OCSLA. The denial of Morris’s remand motion is therefore AFFIRMED .
B. The June 8, 2001, order to remand
Though not addressed by the parties until this Court requested additional letter briefing,
the finality of the June 8, 2001, order to remand is the dispositive issue in this appeal. The
parties’ failure to raise this issue is immaterial since, if necessary, we can examine sua sponte our
jurisdiction to hear appeals. Crone, 324 F.3d at 836.
Neither party explains why this appeal is timely, or more critically, why the appeal of the
second removal succeeds in bringing to this Court issues beyond those directly related to the
propriety of the second removal. It is true that appeal of the district court’s grant of summary
judgment on May 21, 2001, was not immediately available; the judgment was not “final” because
one party, Gulf, remained in the suit after the summary judgment. See FED. R. CIV. P. 54(b). It is
equally true that the district court’s decision to remand was not subject to review. See 28 U.S.C.
1447(d) (“An order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise . . . .”).
However, we must consider whether the June 8, 2001, order to remand was a final
decision that allowed review of that part of the case which the district court decided (apart from
the remand order itself, which was unopposed). We hold that that order was final. Although as a
general rule an order of remand is not reviewable on appeal, this Court “may review any aspect of
a judgment containing a remand order that is distinct and separable from the remand proper.”
First Nat. Bank v. Genina Marine Servs., Inc., 136 F.3d 391, 394 (5th Cir. 1998) (internal
9
quotation and citation omitted). An order is “separable if it precludes the remand in logic and in
fact and is conclusive.” Id. A conclusive order is one that “will have the preclusive effect of
being functionally unreviewable in state court.”
Id. See also John G. & Marie Stella Kenedy
Mem. Found. v. Mauro,
21 F.3d 667, 670 (5th Cir.), cert. denied,
513 U.S. 1016 (1994)
(upholding appellate review of district court’s dismissal of the plaintiff’s federal claims after the
district court remanded the case to state court); Mitchell v. Carlson,
896 F.2d 128, 133 (5th Cir.
1990) (upholding the availability of federal appellate review of the part of the decision the state
court would not be able to reconsider on remand); City of Waco, Tex. v. U.S. Fid. & Guar. Co.,
293 U.S. 140, 143-44 (1934) (allowing appeal of a district court order dismissing one party once
the district court ordered remanded to state court, and noting the difference between an appeal of
the decision to dismiss and the decision to remand). See generally FED. PRAC. & PROC. §
3914.11 (arguing that City of Waco provides a direct appeal of non-remand decisions that
otherwise would only be reviewable under an extraordinary writ).
After Morris and Gulf settled in state court, Morris never filed a notice of appeal (much
less a timely notice) in federal district court—the only proper forum—seeking review of the
district court’s original summary judgment in favor of SubSea. Instead, Morris now appeals the
Second Removal, after he attempted to appeal the district court’s original summary judgment in
state court. While it is difficult to imagine that Morris’s ability to appeal the district court’s initial
grant of summary judgment to SubSea only arises on the fortuitous (and perhaps ill-conceived)
action of SubSea removing the case a second time, it is absurd to suppose that the proper forum
for Morris to appeal a federal district court’s summary judgment order is the Louisiana state
appellate court. In order to preserve the right to appeal the grant of summary judgment, Morris
10
had to have filed a timely notice of appeal in the district court after that court entered the remand
order. Since Morris’s filing of the notice of appeal on November 1, 2002, came well after the
thirty-day period prescribed in FED. R. APP. P. 4(a), this appeal is untimely and the order
dismissing Morris’s claim against Subsea is AFFIRMED.
C. The state court proceedings
We see no need to issue an injunction at this time, as we trust that the state appellate court
will recognize that it has no jurisdiction to hear an appeal from a judgment of a federal district
court, and thus will not convene, nor continue proceedings, nor enter judgments, that contravene,
or are inconsistent with this opinion.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
11
